Such an approach violates a
generally accepted principle, which is that within broad limits, individuals
should be able to decide what is to be done with and to their bodies.
Presumed Consent
A policy that can pass libertarian muster by our standards is called
presumed consent. Presumed consent preserves freedom of choice, but it
is different from explicit consent because it shifts the default rule. Under
this policy, all citizens would be presumed to be consenting donors, but
they would have the opportunity to register their unwillingness to donate,
and they could do so easily. We want to underline the word easily, because
the harder it is to register your unwillingness to participate, the less libertarian the policy becomes. Recall that libertarian paternalists want to im-
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pose low costs, and if possible no costs, on those who go their own way. Although presumed consent is, in a sense, the opposite of explicit consent,
there is a key similarity: under both regimes, those who don’t hold the default preference will have to register in order to opt out.

…

Whatever the precise ﬁgure, it is clear that the switch would save thousands of
lives every year.
Determining the exact effect of changing the default rule is difﬁcult because countries vary widely in how they implement the law. France is technically a presumed consent country, but physicians routinely ask the family
members of a donor for their permission, and they usually follow the family’s wishes. This policy blurs the distinction between presumed consent
and explicit consent.
Still, the default rule does matter. In the United States, if there is no explicit donor card for survivors to see, families reject requests for donations
about half the time. The rejection rate is much lower in countries with presumed consent rules, even though there is typically no record of the
donor’s wishes. In Spain the rate is about 20 percent, and in France it is
about 30 percent.4 As one report put it: “The next of kin can be approached quite differently when the decedent’s silence is presumed to indicate a decision to donate rather than when it is presumed to indicate a
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decision not to donate.

…

In the explicit
consent condition, participants were told that they had just moved to a
new state where the default was not to be an organ donor, and they were
given the option of conﬁrming or changing that status. In the presumed
consent version, the wording was identical but the default was to be a
donor. In the third, neutral, condition, there was no mention of a default—they just had to choose. Under all three conditions, the response
was entered literally with one click.
As you will now expect, the default mattered—a lot. When participants
had to opt in to being an organ donor, only 42 percent did so. But when
they had to opt out, 82 percent agreed to be donors. Surprisingly, almost
as many people (79 percent) agreed to be donors in the neutral condition.
Although nearly all states in the United States use a version of explicit
consent, many countries in Europe have adopted presumed consent laws
(though the cost of opting out varies, and always involves more than a
click).

Most countries adopt some version of an opt-in policy, whereby donors have to take some positive step such as filling in a form in order to have their name added to the donor registry list. However, some countries in Europe, such as Spain, have adopted an opt-out strategy that is called “presumed consent.” You are presumed to give your permission to have your organs harvested unless you explicitly take the option to opt out and put your name on a list of “non-donors.”
The findings of Johnson and Goldstein’s paper showed how powerful default options can be. In countries where the default is to be a donor, almost no one opts out, but in countries with an opt-in policy, often less than half of the population opts in! Here, we thought, was a simple policy prescription: switch to presumed consent. But then we dug deeper. It turns out that most countries with presumed consent do not implement the policy strictly. Instead, medical staff members continue to ask family members whether they have any objection to having the deceased relative’s organs donated.

…

This question often comes at a time of severe emotional stress, since many organ donors die suddenly in some kind of accident. What is worse is that family members in countries with this regime may have no idea what the donor’s wishes were, since most people simply do nothing. That someone failed to fill out a form opting out of being a donor is not a strong indication of his actual beliefs.
We came to the conclusion that presumed consent was not, in fact, the best policy. Instead we liked a variant that had recently been adopted by the state of Illinois and is also used in other U.S. states. When people renew their driver’s license, they are asked whether they wish to be an organ donor. Simply asking people and immediately recording their choices makes it easy to sign up.† In Alaska and Montana, this approach has achieved donation rates exceeding 80%.

Spain, France, Norway, Israel, and many other countries have “opt-out” (or presumed consent) laws when it comes to organ donation. You are an organ donor unless you indicate otherwise, which you are free to do. (In contrast, the United States has an “opt-in” system, meaning that you are not an organ donor unless you sign up to be one.) Inertia matters, even when it comes to something as serious as organ donation. Economists have found that presumed consent laws have a significant positive effect on organ donation, controlling for relevant country characteristics such as religion and health expenditures. Spain has the highest rate of cadaveric organ donations in the world—50 percent higher than the United States.14 True libertarians (as opposed to the paternalistic kind) reject presumed consent laws, because they imply that the government “owns” your internal organs until you make some effort to get them back.

ORGAN TRANSPLANTS: The first successful long-term kidney transplant was performed at the Peter Bent Brigham Hospital in Boston by Joseph Murray in December 1954, as related in Nicholas Tilney, Transplant: From Myth to Reality (Yale University Press, 2003). / 111 “Donorcyclists”: see Stacy Dickert-Conlin, Todd Elder, and Brian Moore, “Donorcycles: Do Motorcycle Helmet Laws Reduce Organ Donations?” Michigan State University working paper, 2009. / 111 “Presumed consent” laws in Europe: see Alberto Abadie and Sebastien Gay, “The Impact of Presumed Consent Legislation on Cadaveric Organ Donation: A Cross Country Study,” Journal of Health Economics 25, no. 4 (July 2006). / 112 The Iranian kidney program is described in Ahad J. Ghods and Shekoufeh Savaj, “Iranian Model of Paid and Regulated Living-Unrelated Kidney Donation,” Clinical Journal of the American Society of Nephrology 1 (October 2006); and Benjamin E.

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The normal supply of cadavers couldn’t keep up with the demand for organs. In the United States, the rate of traffic fatalities was declining, which was great news for drivers but bad news for patients awaiting a lifesaving kidney. (At least motorcycle deaths kept up, thanks in part to many state laws allowing motorcyclists—or, as transplant surgeons call them, “donorcyclists”—to ride without helmets.) In Europe, some countries passed laws of “presumed consent” rather than requesting that a person donate his organs in the event of an accident, the state assumed the right to harvest his organs unless he or his family specifically opted out. But even so, there were never enough kidneys to go around.
Fortunately, cadavers aren’t the only source of organs. We are born with two kidneys but need only one to live—the second kidney is a happy evolutionary artifact—which means that a living donor can surrender one kidney to save someone’s life and still carry on a normal life himself.

The Downing Street seminar on preventing littering and stopping fossilised wood being stolen was soon forgotten. Curiously, one of Prime Minister Brown’s smartest new political aids, Greg Beales, had worked on the original PMSU paper on behaviour change. In the new No. 10, Greg held responsibility for health. It’s no coincidence, then, that one early move of the Brown administration was to float the idea of changing the defaults on organ donation to ‘presumed consent’ – where people would opt out of being donors, rather than opt in. But even this was not quite the right fight for that time or issue. There was a public and professional backlash against the idea, and the last whisper of the old PMSU paper was silenced for now, in Britain at least.19
On the other side of the Atlantic, behavioural approaches to policy were about to get a major boost.
CHAPTER 2
NUDGING GOES MAINSTREAM
… we cannot meet 21st-century challenges with a 20th-century bureaucracy … Yes, government must lead on energy independence, but each of us must do our part to make our homes and businesses more efficient.

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We all agreed that an early objective would be to try out some of the most prominent and best-evidenced ideas from the wider literature, and from the US in particular. These could provide some early quick wins, and help to establish the approach. For example, we suspected that a version of a successful ‘promoted choice’ approach to organ donation in Illinois could work well in the UK without needing to go for the ‘presumed consent’ method that had been proposed by the previous Brown government and abandoned in the face of public opposition. If it worked, it would be a nice illustration of the Coalition’s different approach, and of course would hopefully save a few lives.
Other criteria for early priorities were that: the issue was a PM or DPM priority; the intervention was likely to be revenue-producing or saving (given the pressures on budgets); and the intervention was amenable to systematic testing and trialling, with good management data in place that we could use for measurement.

…

Oxford: Polity
17 The ‘Forward Strategy Unit’, created in 2001, formed a sister unit to the existing Performance and Innovation Unit created in the wake of the 1997 election. Both were later merged to form the PM’s Strategy Unit, which lasted until it was shut down by the 2010 Coalition Government of Cameron and Clegg in early 2011.
18 Cialdini, R. B. (2003). ‘Crafting normative messages to protect the environment’. Current Directions in Psychological Science, 12(4), 105–109.
19 Interestingly, the Welsh Government did continue to pursue the idea of presumed consent. Organ donation was also on the list of early topics for BIT in 2010, though with a subtly different solution in mind.
Chapter 2: Nudging Goes Mainstream
1 In my view Richard Thaler’s work is sufficiently outstanding and impactful in its own right to merit the Nobel Prize in economics, a view I know to be shared by many others. For a recent and accessible overview of his work, see Thaler, R. (2015), Misbehaving: the Making of Behavioural Economics.

Those
receiving the letter faced a designed ‘choice environment’, requiring a decision
to opt out or be automatically covered. But there was no opt-out form included,
so people wishing to do so had to go to a website, find a form to download,
print it, sign it, send it as a letter to their general practitioner (GP) and hope it
would be acted upon. Bureaucratic hurdles were deliberately raised, increasing
the cost of opting out and giving a bias to ‘presumed consent’.
Those least likely to opt out are the uneducated, the poor and the ‘digitally
excluded’, mostly elderly without access to online facilities. As of 2010, 63 per
cent of all those over the age of 65 in the United Kingdom lived in a household
without internet access. There is government pressure, led by its ‘digital
inclusion champion’, for more people to have access. And the cost of not having
it is being raised.

Defecation is as strong an urge as ejaculation, yet society has taught humans of all genders to be fiercely private and respectful about this and not plop it all about like horses. Sane men do not lose control and begin masturbating in front of everybody at the party; they remain aware of right and wrong, of embarrassment and propriety, even when intoxicated. Respect for women’s bodies, whether they be asleep, or naked or drugged, should be learned like toilet training.
It has to be taught. It’s too dangerous to presume consent is obvious and that anyone who gets it wrong is a bad person. This needs deep thought and conversations. And alcohol is a very complicating factor. There is a point of drunkenness where people are considered unable to give consent to various things, including sexual contact. There are multitudes of warnings aimed at young women, shouting about the dangers of being wasted and vulnerable, while there is virtually nothing aimed at educating young men.

Allhoff then contends that such enhancements would be permissible if every future ­generation would consent to them. But the requirement that all future generations must consent adds nothing to the moral force of Allhoff’s arguments since already all rational agents would consent to such enhancements. So again, safe genetic interventions that improve a prospective child’s health, cognition, and so forth would be morally permissible because we can presume consent from the individuals who benefit from the enhancements.
Many opponents of human genetic engineering are either conscious or unconscious genetic determinists. They fear that biotechnological knowledge and practice will somehow undermine human freedom. In a sense, these genetic determinists believe that somehow human freedom resides in the gaps of our knowledge of our genetic makeup. If parents are allowed to choose their children’s genes, then they will have damaged their children’s autonomy and freedom.